2003BCSC1906

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*ICBC v. Lemare Lake Logging Ltd.,*
	2003 BCSC 1906

Date: 20031218
Docket: S016656

Registry: Vancouver

Between:

Insurance Corporation of British Columbia

Plaintiff

And

Lemare Lake Logging Ltd.

Defendant

Before: The Honourable Madam Justice Holmes

Reasons for Judgment

Counsel for the Plaintiff:	D.D. Nugent
Counsel for the Defendant:	C.A. Rhone
Date and Place of Trial:	October 16 & 17, 2003
	Vancouver, B.C.

INTRODUCTION

[1] A pick-up truck or crummy and a logging truck collided on a narrow Vancouver Island logging road as they unexpectedly met from different directions. The driver of each vehicle says that he announced his location on the road over the radio, as is standard in the logging industry, and that the other driver did not. Each party says that the other driver drove too fast to avoid the collision.

[2] The question for determination is whether and to what extent each driver is responsible for the accident, and thus how the agreed $23,000 loss should be apportioned between the parties.

BACKGROUND

[3] The facts as I find them are these.

[4] The collision occurred in the afternoon of May 30, 2000, on the Restless Main logging road in the Mahatta River area. The kilometres are marked with signs along the 23 km length of the logging road.

[5] The pick-up belonged to VIH Logging Ltd., which was engaged in helicopter logging operations out of a camp beyond the kilometre 23 end of Restless Main. Wayne Goesen, a VIH foreman and supervisor, was driving the pick-up truck back along Restless Main in order to get spikes to repair a helicopter pad at the camp.

[6] The logging truck belonged to Lemare Lake Logging Ltd. Brian Turner, a Lemare Lake truck driver, had delivered a load of logs, and was driving the logging truck back empty.

[7] Restless Main is a gravel road with soft shoulders. Even for a logging road, it is narrow. The photographs of the road did not make clear where the shoulders started. When witnesses estimated the width of the road it was often not clear whether or not they included the shoulders in the width. Although it is therefore difficult to make a finding as to the width of Restless Main in feet or metres, I am satisfied from the evidence as a whole that Restless Main is wide enough for two standard-sized vehicles to pass each other with care, but over most of its length does not permit a logging truck to pass another vehicle except with extreme difficulty. This is in part because logging trucks, which weigh 25-30 tons even when empty, cannot safely drive on the soft shoulder without a serious risk of tipping over.

[8] Standard safety procedure in the logging industry requires drivers using the road to "call in" to a particular radio channel to indicate their presence, direction, and location on the road by reference to the kilometre markers. One of two oncoming vehicles will use one of the many pull-outs to let the other vehicle pass. An empty logging truck yields to a loaded one, and a pick-up truck usually yields to a logging truck.

[9] Here, both drivers claim to have regularly called in their location and to have heard no response from the other. Mr. Goeson testified that he last called in at kilometre 9. Mr. Turner testified that he last called in at kilometre 8. They both say that nobody responded and they knew of no vehicles but their own on the road in the area. They collided at about kilometre 8 3/4.

[10] The drivers first saw each other at the same time, after Mr. Goesen rounded a bend. Mr. Turner was at that time on a straight stretch of road with a slight downhill grade approaching the bend that Mr. Goesen had just come round. However, he was not close enough to the bend to have started slowing down for it.

[11] When he first saw the logging truck, Mr. Goesen reacted by applying his clutch and his brakes and steering hard to the right. His wheels locked and the vehicle skidded a considerable distance as it moved to the right.

[12] When Mr. Turner first saw the pick-up truck, he steered the logging truck as far as he felt he safely could toward the shoulder. He did not brake because, as he explained, to have done so under the conditions would have caused him to lose control of the logging truck.

[13] The left front of Mr. Goesen's pick-up collided with the driver's side rear axle of the logging truck. Because of the narrow width of Restless Main, the point of impact was well over into Mr. Goesen's driving side of the road. The rear portion of Mr. Goesen's pick-up was on the shoulder of the road and in the ditch.

[14] Mr. Goesen was pinned under the dash board of the pick-up and sustained broken ribs. Medical assistance arrived within about 10-15 minutes, and Mr. Goesen was airlifted to hospital.

[15] The pick-up was badly damaged and has been written-off. The $23,000 paid in compensation is the subject of ICBC's present claim.

[16] Mr. Turner was not injured, and the logging truck was not damaged.

[17] Both Mr. Goesen and Mr. Turner are highly experienced in the logging industry, are experienced drivers for their respective vehicles, were trained in safety operating procedures including the use of radios to call out their position on the road, and were familiar with the Restless Main road.

POSITIONS OF THE PARTIES

[18] The plaintiff acknowledges that Mr. Goesen contributed to the accident by driving too fast to enable him to stop the pick-up before it collided with the logging truck.

[19] However, the plaintiff submits that Mr. Turner was largely at fault for the accident for driving without proper care and attention at an excessive speed for the conditions and without reasonable consideration for others using the road. The plaintiff submits that liability for the accident should be apportioned 75% to Mr. Turner and 25% to Mr. Goesen.

[20] The defendant contends that the accident was entirely attributable to Mr. Goesen's excessive speed, and that the plaintiff has failed to prove any negligence on Mr. Turner's part.

DISCUSSION

Radio Communication of the Drivers' Positions

[21] Two propositions regarding radio communication were supported by all the evidence and were common ground between counsel. First, in light of the clear industry practice, Mr. Goesen and Mr. Turner would each have been negligent had they failed to use their radio equipment to communicate their position on the road. Second, they would also have been negligent had they relied exclusively on radio communication for information as to the whereabouts of other vehicles on the road. These propositions find support in the various authorities cited to me, including Neale Bros. Transfer Ltd. v. Caruso (1986), 8 B.C.L.R. (2d) 99, [1986] B.C.J. No. 1112 (Q.L.)(S.C.), Hanley v. Williston Lake Trucking Ltd. and Neufeld (16 June 1983), Vancouver B820054 (S.C.), Koopman v. Fehr (1993), 81 B.C.L.R. (2d) 145, [1993] B.C.J. No. 1405 (Q.L.)(C.A.).

[22] Much of the trial concerned whether or not Mr. Goesen and Mr. Turner in fact called out the respective positions of their vehicle. As I have noted above, each testified that he did so and that the other did not.

[23] I accept Mr. Goesen's evidence that he radioed his position as he proceeded along Restless Main. He gave his evidence in a candid and straightforward manner. I find that he described the events as he experienced them, without adding colour or exaggeration. The extent of his recollection and the type and degree of detail in his evidence rang true. I note also that Mr. Goesen had personally placed the kilometre markers along Restless Main when VIH started the project in the area and he noticed that the markers were lacking. This demonstrates his attention to their significance as a safety feature on the road.

[24] Mr. Turner's testimony seemed to be sincerely given. However, its somewhat mechanical and monosyllabic character conveyed only a sparse account of the events. This made difficult the assessment of the reliability of his recollection and, in particular, of conflicts with Mr. Goesen's evidence and of certain discrepancies within Mr. Turner's own account of the events.

[25] Despite these difficulties, I do not reject Mr. Turner's evidence that he radioed his position along Restless Main. I consider more likely that his call-outs were ineffective because of deficiencies in his manner of communication or in the technical system itself.

[26] I note also that it was common ground that drivers on Restless Main should assume that there may be other drivers on the road who do not have or use radios to communicate their position. The defendant's witnesses spoke of tourists, kayakers, hunters, and others who use the road from time to time. Mr. Goesen disputed the suggestion that the road is open to the public, but agreed that it would be unwise to assume that all vehicles on the road are in radio communication.

[27] Mr. Goesen testified that before the collision, he saw a cloud of dust and pulled into a pull-out to allow another Lemare Lake logging truck to pass. There was no suggestion that the driver of that truck had called out his position. I conclude from this that not long before the accident Mr. Goesen knew that at least one truck was on the road and not communicating by radio.

[28] On the evidence before me, I am unable to make a finding of negligence flowing from a failure to use radio equipment to call out the vehicle's position.

The Manner of Driving

[29] Section 144(1) of the Motor Vehicle Act provides that:

144 (1) A person must not drive a motor vehicle on a highway

(a) without due care and attention,

(b) without reasonable consideration for other persons using the highway, or

[30] The plaintiff alleges that Mr. Turner drove at an excessive speed for the conditions, without consideration for others on the road, and failed to take the necessary driving measures to avoid the collision.

[31] The evidence did not disclose the speed limit applicable to Restless Main. Mr. Goesen testified that he understood it to be 60 km per hour, and this evidence was unchallenged.

[32] Mr. Goesen testified that he was travelling at about 50 km per hour when he first saw Mr. Turner's logging truck. Mr. Turner on the other hand estimated Mr. Goesen's speed to be about 60 km per hour. Of the two estimates, I prefer Mr. Goesen's, as grounded in a fuller evidentiary context. Mr. Goesen was also in the better position to estimate the speed of the pick-up he was driving.

[33] Mr. Turner was driving at the maximum speed of the logging truck, which is 35 km per hour. The defendant submitted that this is "school zone speed", an inherently cautious speed which cannot give rise to negligence.

[34] The fact that Mr. Turner's speed was slow when measured against suitable speeds for many roads and conditions does not make it reasonable or safe for the conditions on Restless Main. The most significant of those conditions, for the present case, was that Restless Main is narrow and Mr. Turner's logging truck occupied most of its width. Lemare Lake drivers are instructed for safety reasons to drive in the middle of the road and, as Mr. Turner testified, cannot safely move their logging trucks much toward the right side of the road. A logging truck may tip if it drives on the soft shoulder. Oncoming vehicles must either stop (and hope that the logging truck will also stop before reaching them) or be forced off the road.

[35] I conclude that in those circumstances, drivers of logging trucks on Restless Main carry a duty to drive at a speed that permits them to perform an emergency stop to avoid an oncoming vehicle.

[36] Mr. Turner testified that at his speed of 35 km per hour he could not apply his brakes without losing control of the truck and skidding off the road. He testified that the same risks would have arisen had he been travelling at 15-20 km per hour. Only at about 5-10 km per hour could he safely have braked. Although Mr. Turner could not safely brake between seeing the pick-up and colliding with it, he was able to slow the logging truck by removing his foot from the accelerator.

[37] Mr. Turner testified that he was travelling at the top speed for the logging truck because "that is the speed for the road". He testified that he customarily slows to about 20 km per hour around corners, starting to slow about 150 feet ahead, by taking his foot off the throttle and applying the brakes a little. I took from his evidence as a whole that Mr. Turner was driving for the course and surface of the road itself, rather than to make sure he had sufficient time and distance to stop if an oncoming vehicle suddenly appeared around a bend or over a hill.

[38] In my view, Mr. Turner paid insufficient attention to his duty to others on the road. He was driving a huge vehicle that occupied most of the road, and knew that approaching traffic would be virtually unable to pass.

[39] Mr. Goesen estimated that Mr. Turner's logging truck was about 60-70 feet away when he first saw it. Mr. Turner estimated that Mr. Goesen's pick-up truck was about 200 feet away when he first saw it. The skid marks associated with Mr. Goesen's pick-up ran 60 feet in length, and indicate that the vehicles were at least that distance when the drivers first saw each other. I find nothing in the evidence to suggest that after he rounded the bend, Mr. Goesen's view of the road was obstructed, that his attention was lacking, or that for any other reason he failed to see the logging truck after Mr. Turner had first seen the pick-up. I therefore attribute the discrepancy between 60-70 feet and 200 feet to inaccuracies in the witnesses' recollection or estimates. I find nothing in the evidence from which to conclude that either driver saw or should have seen the other vehicle appreciably before the other driver did.

[40] I am satisfied that both drivers used their best skill and efforts to do what was possible in the circumstances to avoid the collision after they saw the other vehicle. However, given the width of the logging truck and its inability to deviate from the centre of the road, the collision could be avoided only if both vehicles came to a stop before they reached each other. The time available to them for coming to a stop was in turn determined by the speeds at which they were respectively travelling.

[41] At the point of impact, the pick-up was travelling faster than was the logging truck. Mr. Goesen testified that the logging truck was stopped or nearly stopped at the point of impact, while Mr. Turner testified that it was slowing down. The difference in the vehicles' speeds at the time of the collision is consistent with the evidence, discussed above, that Mr. Goesen was driving at a faster speed than was Mr. Turner.

[42] However, I do not conclude from this that Mr. Goesen was more at fault for the accident than was Mr. Turner. I find that the accident would have happened even if Mr. Goesen had been travelling at a reasonable rate of speed for the conditions. Mr. Turner was travelling at a slower speed than was Mr. Goesen, but had less ability to brake and, significantly, occupied the full width of the road. He held a high responsibility to ensure that he could avoid collision with an oncoming vehicle in any of the varying circumstances he might encounter along the road.

[43] I conclude that Mr. Goesen and Mr. Turner were equally responsible for the collision. When they approached each other on Restless Main they each drove too fast for the conditions, which, in Mr. Turner's case, included that the logging truck he drove occupied virtually the full width of the road and could not readily be stopped or steered to the side of the road to avoid collision with a vehicle approaching or steered to its own side of the road.

CONCLUSION

[44] I conclude that responsibility for the accident should be apportioned 50% to Mr. Goesen and 50% to Mr. Turner.

“H. Holmes, J.”
The Honourable Madam Justice H. Holmes